Employer beware: the need to justify action against union-associated employees

Posted on: 16 Apr, 2010 |
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Introduction

A recent case in the Federal Court has shed some light on the
new adverse action provisions of the Fair Work Act 2009
(Act), which essentially prohibit an employer from
taking prejudicial action against an employee for a prohibited
reason (the protective provisions).

In Barclay v The Board of Bendigo Regional Institute of
Technical and Further Education [2010] FCA 284, a senior
teacher claimed that a decision to suspend him made by his
employer, Bendigo TAFE, was unlawful because it was based on his
union delegate activities. Mr Barclay was suspended, following what
Bendigo TAFE described as serious misconduct, for sending an email
to union member employees of Bendigo TAFE alleging improper conduct
by Bendigo TAFE. The case is the first to examine adverse action
under the Act since the commencement of the protective provisions
on 1 July 2009.

Adverse action

In its decision, the court considered the scope of the
protective provisions under the Act, noting the term 'adverse
action' expands the type of action previously covered under the
Workplace Relations Act 1996. Under s342 of the Act, an
employer takes adverse action against an employee if it:

(a) dismisses the employee;

(b) injures the employee in his or her
employment;

(c) alters the position of the employee to the
employee's prejudice; or

(d) discriminates between the employee and other
employees of the employer.

Bendigo TAFE conceded that, in suspending Mr Barclay, it took
adverse action against him. Hence the court did not explore the
precise definition of the term, specifically whether instituting an
inquiry, issuing a show cause notice or laying disciplinary charges
falls within that definition. It did however note that although the
particular circumstances of each case must be considered, the
greater the impact on the employee, the more likely it is that the
employer's conduct will be treated as 'adverse action'.

Prohibited reasons and presumption against employer

Mr Barclay alleged Bendigo TAFE had suspended him unlawfully,
because its decision to take action against him was based on his
association with (and membership of) the union, a prohibited reason
under the Act. Other prohibited reasons under the Act include
taking adverse action because the employee:

engages in industrial activity;

has a workplace right;

is entitled to a benefit under workplace law and/or
participates in proceedings under workplace law; or

is of a particular race, colour, sex, sexual preference, age,
marital status, religion, political opinion, national extraction or
social origin, has a physical or mental disability or family or
carer's responsibilities or is pregnant.

Where the court finds a nexus between the prohibited reason and
the adverse action, the employer's actions will be unlawful. The
evidence of the decision maker will be relevant to the court's
determination.

Ultimately, in this case the court found that Bendigo TAFE, in
disciplining and suspending Mr Barclay, had not acted for any
prohibited reason, but rather it had acted to address the serious
allegations raised by Mr Barclay and prevent further damage to the
reputation of Bendigo TAFE and its staff.

Comment

Importantly, under the protective provisions there is a
presumption that the employer has acted for a
prohibited reason. This is significant because the onus lies on the
employer to prove that the proscribed issue (in this case, Mr
Barclay's status with the union and his responsibilities and
activities as the union delegate) was not a reason
for its decision to take disciplinary action.

While confirming that an employer is not prevented from taking
prejudicial action against a 'unionised' employee, the case serves
as an important reminder that if adverse action is taken, employers
must explain why it was taken and show it was not motivated by a
prohibited reason.